TMI Blog2017 (11) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... rcise its jurisdiction to grant relief - None of the exception is applicable to the case on hand. The present Writ Petition filed under Article 226 of the Constitution of India, is wholly misconceived and that the same is not maintainable - petition dismissed being not maintainable. - W. P. Sr. No. 71173 of 2017 - - - Dated:- 22-9-2017 - S. Manikumar And V. Bhavani Subbaroyan, JJ. For the Petitioner : Mr. ARL. Sundaresan, for Mr. Lakshmi Kumaran ORDER ( Order of the Court was made by S. Manikumar, J. ) Writ of Certiorarified Mandamus, is sought for, to quash the order of the CESTAT, Chennai, in Final Order No.40582/2017, dated 03.04.2017. After scrutiny of the case papers, Registry has returned the same, with the following endorsement: When there is an appeal remedy available under 35G of Central Excise Act 1944 and Customs Act, 1962 and also as per the order passed by the Hon'ble DivisionBench in W.P.No.36051/2004 (Batch cases) as categorically stated, the Writ Petitions are not maintainable, remedy for the Writ Petition is to only file an appeal before High Court under Section 35G of Central Excise Act 1944 or under Section 130 of the Customs Act 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Division Benches dealing with tax cases. 6. Therefore, the Registry is directed to prepare a note regarding maintainability of the writ petition and place the same before the Division Bench for orders. 3. Thus, W.P.Sr.No.71173 of 2017, is listed before us, for maintainability. 4. Inviting the attention of this Court to Paragraph 44 of the judgment made in Metal Weld Electrodes v. CESTAT reported in 2014 (299) ELT 3 (Mad.), considered in Tiruchitrambalam Projects Ltd. Vs. CESTAT, Chennai reported in 2016 (43) STR 531, wherein, a Hon'ble Division Bench of this Court held that writ petition, against the order of CESTAT, is maintainable and further contending that when CESTAT, Madras, in the case of the petitioner, on the same set of facts, passed two different orders, Mr.ARL.Sundaresan, learned Senior Counsel for the writ petitioner submitted that the instant writ petition, filed against the order of CESTAT, Chennai, is maintainable. 5. Heard the learned Senior Counsel appearing for the petitioner and perused the materials available on record. 6. Point for consideration in the Writ Appeal is, whether the Writ Petition is maintainable under Article 226 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India. 7. Material on record further indicates that the issue raised by the petitioner, involves a dispute, in relation to classification, in which event, it is our considered opinion that the appropriate remedy, would be an appeal, provided under the statute. Though the learned Senior Counsel appearing for the petitioner, contended that CESTAT, Madras, has passed two sets of orders on identical facts, that alone would not give rise to a cause to file a writ petition, when there is an effective and alternative remedy, by way of an appeal under Section 35G of the Central Excise Act, 1944. On the issue raised in the writ petition, at this juncture, it is relevant to consider, Section 35G of the said Act, (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) The Principal Chief Commissioner of Central Excise or Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this Section. 8. In Union of India v. Guwahati Carbon Ltd., reported in 2012 (11) SCC 651, after considering a catena of judgments and Section 35G of the Central Excise Act, 1944 and on the facts and circumstances of the case, relating to determination of the assessable value of the commodity in question, for the purpose of levy of duty, under the Central Excise Act, 1944, at Paragraphs 4, 15 and 16, held as follows: 4. We reiterate that the High Court, under article 226 of the constitution of india, has vast powers as this Court has under article 32 of the constitution of india, but such powers can only be exercised in those cases where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er words, existence of an adequate alternative remedy is a factor to be considered by the writ court before exercising its writ jurisdiction (see Rashid Ahmed v. Municipal Board, Kairana [AIR 1950 SC 163]). 11. In Whirlpool Corpn. v. Registrar of Trade Marks [1998 (8) SCC 1], this Court held: (SCC pp. 9-10, para 15) 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 9. Lack of jurisdiction would be ground, for invoking the extraordinary remedy, under Article 226 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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